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Law professor provides insight into new MT COVID-19 laws

State Capitol Helena
Posted at 6:05 PM, Sep 24, 2021
and last updated 2021-09-24 20:05:52-04

MISSOULA — New laws in Montana that aim to strike a new balance between public health, private business, and government power have left local health leaders' hands tied.

According to constitutional law and legislature expert Anthony Johnstone, Helen and David Mason Professor of Law at the University of Montana, this type of reaction is happening throughout the country.

“In part, I think because we haven't had a pandemic like this for a century, and many people were surprised to see either for the better or for the worse, just what power we propose in local public health officials to keep us safe," Johnstone explained.

One Montana law, in particular, goes farther than any other state.

“There are parts of Montana's response that are unique, such as House Bill 702, which goes beyond any other state and actually telling private businesses that they aren't even allowed to do with their own businesses, their own property, and their own employees," Johnstone said.

House Bill 702 broadly outlaws discrimination based on vaccination status. Earlier this week, a lawsuit challenged this law.

A coalition of medical providers and patients in Montana says it violates federal law and the Montana constitution. Lawsuits like this can provide clarity around the boundaries of new laws.

“It's in that application of cases where you begin to figure out where the lines get drawn in terms of what governments, businesses, and employers can do," Johnstone said, adding that non-action to test the limits of the new legislation is a concern.

“But when you don't see those laws tested. When you don't see jurisdictions, trying to push a little bit against the boundaries of those laws we're never going to get the kind of clarity. I think the last thing we want to do is come out of this enormous public health crisis that Montana is experiencing more than anywhere else in the nation right now and look back and not think that we've done everything we can within the law," UM law professor Anthony Johnstone

It remains to be seen who would take up additional challenges to these new laws and how they would go about doing it.